Citation Nr: 21068382 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-07 333 DATE: November 10, 2021 ORDER Entitlement to an initial rating greater than 10 percent for service-connected tinnitus is denied. REMANDED Entitlement to an initial compensable rating prior to November 19, 2019, and in excess of 10 percent thereafter for service-connected bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, on an extraschedular basis, is remanded. FINDINGS OF FACT 1. The appellant is in receipt of the maximum schedular rating for tinnitus and the preponderance of the evidence is against the appellant's reported recurring headaches being a symptom of his service-connected tinnitus or bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.87, Diagnostic Code 6260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from August 1977 to August 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for bilateral hearing loss and tinnitus effective February 13, 2015. An initial noncompensable rating was assigned for the service-connected hearing loss and an initial 10 percent rating was assigned for the service-connected tinnitus, resulting in a 10 percent combined disability evaluation. The rating assigned for each disability was appealed in a notice of disagreement (NOD) received by VA in October 2015. A Statement of the Case (SOC) was issued by VA in January 2017. VA received the appellant's Substantive Appeal (Form 9) in February 2017, perfecting the appeal and requesting a hearing before the Board. The appellant appeared before the undersigned Veterans Law Judge at a hearing in August 2019. A transcript of that hearing has been added to the claims folder and was considered in deciding these claims. These claims were previously remanded by the Board for further development in an August 2019 decision. Following completion of the ordered development, a Supplemental Statement of the Case (SSOC) was issued by VA in November 2019. A second SSOC was issued by VA in July 2020. In a November 2019 rating decision, the Agency of Original Jurisdiction (AOJ) issued a rating decision, increasing the appellant's assigned rating for bilateral hearing loss to 10 percent from November 19, 2019. As the appellant was not assigned the maximum rating for the entire period on appeal and has not otherwise indicated satisfaction with the increase granted, the Board finds the claim is still on appeal, as styled above. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is no abrogated). Increased Rating 1. Entitlement to an initial rating greater than 10 percent for service-connected tinnitus is denied. The appellant contends that his service-connected tinnitus is more disabling than currently rated. He asserts that his symptoms of ringing in the ears is worsening and that it causes recurring headaches. Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran's average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence used to decide whether an [initial] rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, staged ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under 38 C.F.R. § 4.87, Diagnostic Code 6260, recurrent tinnitus warrants a maximum 10 percent rating. See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260 limit a veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). The Board notes that the appellant complained of tinnitus during a July 2015 VA examination and that the disability has been diagnosed and granted entitlement to service connection at the 10 percent disabling rate. The appellant's service-connected bilateral tinnitus has been assigned the maximum schedular rating legally available for the entire period on appeal. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (affirming VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether unilateral or bilateral). Accordingly, no higher schedular evaluation is warranted for tinnitus. At his August 2019 Board hearing, the appellant asserted that he was experiencing headaches that he believed were a symptom of his tinnitus. The Board remanded the claim to obtain a medical opinion addressing this assertion. The appellant underwent a second VA examination with an audiologist in November 2019. The examiner took the appellant's medical history, recorded his report of symptoms, and conducted a complete audiological examination of the appellant. In a November 2019 VA medical opinion, the examiner opined that the appellant's headaches are less likely than not a result of the appellant's service-connected hearing loss or tinnitus. The examiner reasoned that "[a]lthough headaches, hearing loss, and tinnitus can be symptomatic of the same pathology, the Veteran's hearing loss and tinnitus are a result of noise exposure. Recurring headaches are not a known long term symptom of noise exposure; therefore, the Veteran's headaches are not secondary to hearing loss or tinnitus." The Board affords the November 2019 VA medical opinion substantial probative weight in deciding this claim, as it was offered after an examination of the appellant and provided a rationale that explains the pathology of the appellant's service-connected disability and how that pathology is inconsistent with recurring headaches being a connected symptom. The Board has considered the appellant's lay contentions on this matter, with the Board noting the appellant is competent to describe symptoms of his disability and report the time and manner of its onset. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record though contains no indication that the appellant has any medical training or experience such that he would be qualified to offer a competent opinion on the etiology of his reported headaches. The pathology surrounding these headaches involve internal processes that are not readily observable to the appellant and require medical training and experience and diagnostic testing to determine and diagnose. As the appellant is not competent to provide an opinion as to the whether his headaches are a symptom of his service-connected tinnitus or bilateral hearing loss, the Board affords greater probative weight to the November 2019 VA medical opinion. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). As such, the Board finds the preponderance of the evidence is against the appellant's reported recurring headaches being a symptom of his bilateral hearing loss or tinnitus. Other than headaches, which have not been shown to be part and parcel or secondary to the service-connected tinnitus, the Board finds that the rating criteria contemplate the appellant's tinnitus disability. A comparison between the level of severity and symptomatology of the appellant's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Cf. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board finds that other than ringing in the ears, the record contains no evidence of other symptoms attributable to the service-connected tinnitus such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the appellant's tinnitus that would render the schedular criteria inadequate. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an initial compensable rating prior to November 19, 2019, and in excess of 10 percent thereafter for service-connected bilateral hearing loss is remanded. While the Board regrets further delay, additional development is necessary prior to deciding this issue. A review of the appellant's VA treatment records obtained as part of the Board's prior remand indicates that he underwent an audiological evaluation at the Dallas VA Medical Center (VAMC) on December 12, 2017. Puretone thresholds were measured in both the left and right ears and the appellant's word recognition ability was tested in both the left and right ears. However, even though VAMC records show that this test was completed, the results of the pure tone threshold testing are not available in the appellant's claims folder. A general description of the results is available, but the specific measurements at each frequency were not included. As such, the Board finds that remand is necessary to obtain these results prior to final adjudication of this claim. The specific pure tone threshold scores and word recognition scores should be requested and included in the claims folder. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities, on an extraschedular basis, is remanded. The appellant raised the issue of individual unemployability in his October 2015 NOD. He asserted that his service-connected hearing loss, assigned a noncompensable rating at the time, and his service-connected tinnitus, assigned a 10 percent rating at the time, limited his ability to find and maintain gainful employment. He stated that his previous employment included working in call centers in customer service roles answering phones and as a substance abuse counselor. He contended that his hearing loss disability and tinnitus made it too difficult for him to continue in roles similar to these. He also asserted that his disability prevented his employment in work related to construction or manufacturing as his level of hearing impairment would be a safety risk to him and those around him. The appellant's VA medical records indicate that he has been unemployed for the entire period on appeal and for a significant period of time before that. Considering this, the Board finds that the issue of entitlement to TDIU has been raised by the appellant, and as such, is part and parcel of the claim for an increased rating for service-connected bilateral hearing loss. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating). As the appellant does not meet the schedular criteria for TDIU for any of the period on appeal, and remand of this claim is necessary to obtain a determination on entitlement to TDIU on an extraschedular basis from the Director, Compensation Service. 38 C.F.R. § 4.16(b). Regarding the appellant's contentions regarding his inability to work due solely to his service-connected disabilities, the Board makes no findings on the credibility of these assertions at this time. Prior to referral to the Director, Compensation Service, the Agency of Original Jurisdiction (AOJ) should develop the claim for entitlement to TDIU. They should attempt to obtain the appellant's employment and earning history for the entire period on appeal. The matters are REMANDED for the following action: 1. Obtain the complete audiological testing results, to include pure tone threshold measurements and speech recognition scores, from the audiological evaluation conducted on or around December 12, 2017 at the Dallas VA Medical Center. 2. Develop the appellant's claim for entitlement to TDIU on an extraschedular basis. Request the appellant complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and allow him an opportunity to respond. Verify the appellant's employment and earnings history. Obtain any relevant records from the Social Security Administration. 3. After the above ordered development is completed, refer the appellant's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.